[WSBARP] 3 day notice to pay or vacate - does a landlord have to decline partial payment?

Mon Dec 17 17:20:32 PST 2018

I respectfully disagree.  That position isn't correct for rent (you can accept partial payment and still evict without reissuance of 3-day), but it is possibly correct for other breaches of the lease.

Here is a summary with applicable excerpts of case law citation.

WAIVER BY ACCEPTANCE OF RENT

            1.         PARTIAL PAYMENT- Acceptance of a partial payment will not destroy the landlord's right to proceed with an eviction action so long as there is still rent due and owing as specified in the Three Day Notice to Pay Rent or Vacate.  Housing Resource Group v. Price, 92 Wn.App. 394, 401-401, 958 P.2d 327 (1998), review denied, 137 Wn.2d 1010, 978 P.2d 1099 (1999)].

            2.         OTHER DEFAULTS-  Generally, if a landlord accepts rent with full knowledge that the tenant has breached the lease, the landlord waives the right to declare a forfeiture of the lease because of that breach. Wilson v. Daniels, 31 Wn.2d 633, 639, 198 P.2d 496 (1948)<https://advance.lexis.com/document/?pdmfid=1000516&crid=781b4d83-e441-4807-9149-027df7efa00f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4H3J-4DP0-0039-42K4-00000-00&pddocid=urn%3AcontentItem%3A4H3J-4DP0-0039-42K4-00000-00&pdcontentcomponentid=10841&pdteaserkey=sr2&ecomp=f8-g&earg=sr2&prid=4ba7f00e-6816-4f11-9c8b-b27b8065c329>. But there is no waiver of the right to forfeit if the tenant's breach is a continuing one. Wilson, 31 Wn.2d at 640<https://advance.lexis.com/document/?pdmfid=1000516&crid=781b4d83-e441-4807-9149-027df7efa00f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4H3J-4DP0-0039-42K4-00000-00&pddocid=urn%3AcontentItem%3A4H3J-4DP0-0039-42K4-00000-00&pdcontentcomponentid=10841&pdteaserkey=sr2&ecomp=f8-g&earg=sr2&prid=4ba7f00e-6816-4f11-9c8b-b27b8065c329>. Thus, the waiver of a forfeiture by acceptance of rent applies to past breaches, which are single and complete when the rent is accepted, and having been once waived the landlord's rights are lost. But the general rule is that a waiver of a right of forfeiture for breach of a covenant in a lease does not operate as a waiver with respect to a continuance  [7]  of the breach, where the breach is a continuing one, and it does not operate as a waiver of the right of forfeiture for a subsequent breach of the covenant."

(Italics ours.) Wilson, 31 Wn.2d at 640<https://advance.lexis.com/document/?pdmfid=1000516&crid=781b4d83-e441-4807-9149-027df7efa00f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4H3J-4DP0-0039-42K4-00000-00&pddocid=urn%3AcontentItem%3A4H3J-4DP0-0039-42K4-00000-00&pdcontentcomponentid=10841&pdteaserkey=sr2&ecomp=f8-g&earg=sr2&prid=4ba7f00e-6816-4f11-9c8b-b27b8065c329> (quoting 32 Am. Jur. 754, Landlord and Tenant § 890.  See also Hwang v. McMahill, 103 Wn. App. 945; 15 P.3d 172.

Kaitlyn, you present an interesting twist on the above case law.  Your notice specifically prohibits partial payment, which is very unusual.  I would be concerned given that your own landlord's notice prohibits partial payment, whether your landlord can now accept it and proceed.  In light of this interesting twist, I would send a letter to tenant that the funds have been tendered into the court registry and you are proceeding with the eviction.  Your complaint can then ask that the funds be applied to the judgment.

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
P.O. Box 1689
Yakima, Washington  98907
Telephone:  (509) 248-7220
Facsimile:  (509) 575-1883

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Douglas W. Scott
Sent: Monday, December 17, 2018 5:00 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] 3 day notice to pay or vacate - does a landlord have to decline partial payment?

If the landlord accepts the payment in any way they have to start over taking that payment into consideration .

Sent from my iPhone

On Dec 17, 2018, at 4:50 PM, Kaitlyn Jackson <kaitlyn at dimensionlaw.com<mailto:kaitlyn at dimensionlaw.com>> wrote:
Question that came across my desk today -

If a landlord properly serves a 3 day notice to pay or vacate on a tenant that specifically states that "partial payment will not be acceptable" and the tenant deposits a partial payment into the landlord's account - does the landlord have to reject the payment to move forward on the 3 day or serve another 3 day for the remaining balance? Or, can the landlord continue to move forward since the amount demanded was not paid?

Just curious what everyone here thought.

--
Thank you,

Kaitlyn R. Jackson | Attorney| DIMENSION LAW GROUP PLLC
130 Andover Park East, Suite 300 | Tukwila, WA 98188
t: 206.973.3500 | f: 206.577.5090| e: kaitlyn at dimensionlaw.com| www.dimensionlaw.com<http://www.dimensionlaw.com/>

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